May a Jew Own or Work for a Non-Kosher Establishment?

The halachic issues that arise when a Jew
sells non-kosher items have been explored for centuries. While this article is
by no means exhaustive, we will thoroughly examine the considerations involved
in some practical and relevant situations.1

A Jew may not sell non-kosher items for the
purpose of consumption.2 So it is
permitted, for example, to own a pet shop, since the unkosher animals are not
being sold for food.3 It is also
okay to sell non-kosher merchandise that one did not intend to acquire, such as
a fisherman who finds some non-kosher fish in his nets.

This prohibition only applies to foods which
are forbidden Biblically, such as non-kosher animals or fish, meat cooked with
dairy products, or meat which is not slaughtered in accordance with Jewish law.
Foods that are only rabbinically forbidden, such as kosher meat that is mixed
(but not cooked) with dairy, or kosher chicken cooked with milk, are not
included.

In this article:

The Reasons

What is the logic behind this commandment to
abstain from doing business with non-kosher merchandise?

According to 13th century halachic authority
Rabbi Shlomoben Aderet (the “Rashba”), the prohibition stems from the concern
that being occupied with non-kosher food all day may lead one to eat the item.4 To distance
one from even coming into contact with forbidden foods, the Torah forbids doing
business with them entirely. Rabbi Shabtai Kohen (the “Shach”), 17th century
halachic authority, adds the concern that if other Jews see the businessman
handling non-kosher merchandise, they may assume he eats it himself.56

The Sources

Regarding non-kosher species, we are told,
“They are impure for you,”7 closely
followed by, “And they shall be impure for you.”8
Since we know from the first verse that we are not permitted to consume them,
according to the Jerusalem Talmud the second verse must be adding an additional
layer—the prohibition against deriving benefit from the non-kosher species by
selling them.9

The Babylonian Talmud, however, attributes the
prohibition to the verse regarding insects, “And they shall be disgusting to
you.”10 The Talmud
understands the extra words “and they shall be” to indicate that they should
remain forbidden not just from food, but from deriving any benefit whatsoever
through selling them.11

Biblical or Rabbinic?

Since the Talmud derives this law from a verse
in the Torah, it would seem that the prohibition is Biblically mandated, as the
majority of halachic authorities—most notably Tosafot12
and RabbeinuAsher (“the Rosh”)13—maintain. Other authorities, however, including
Rabbi Israel Isserlin (“Terumat Hadeshen”) and Rashba14
maintain that the prohibition is rabbinically mandated and the Talmud’s
derivation from the verse is merely finding an asmachta.15 An asmachta
is when the rabbis base a law on a verse which they understand to be pointing
to that enactment, but it does not imply that the law is Biblically mandated.

The Upshot

Whether a commandment is Biblical or rabbinic
in nature has significant ramifications. In order to understand why, let’s
examine the various types of laws in Judaism and the rules that apply to them.
Generally, we do not look to the reasoning behind mitzvot to determine if and
when they apply. For example, G‑d commanded the Jewish people to observe
Shabbat as a day of rest, but we do not say that whatever feels restful may be
done. Rather, we observe the commandments as they were given to us, without
questioning their premise. Rabbinic enactments, however, work differently,
because the rabbis instituted their laws to safeguard the laws of the Torah. In
certain circumstances, if there is no concern that the Torah law will be
transgressed, the safeguard is deemed unnecessary and there is room to say that
the law does not apply.

Let’s apply this to our situation. If the
prohibition against doing business with non-kosher items is Biblical, it
applies to all cases. So even in a situation where the Rashba’s concern—that
the individual may come to taste the food—does not apply, the prohibition
stands. If, on the other hand, the law is rabbinic, then we may be able to
reason that in a scenario in which a Jew is dealing with non-kosher merchandise
in a position that will never lead him to consume them or be suspected of
eating them, he will be allowed to do so.

Rabbi Shlomo Eiger rejects this approach,
invoking the concept Lo Plug Rabanan (“the
rabbis did not differentiate”).16 This means
that there are instances in which the rabbis prohibited something even in
situations which do not have the characteristics that motivated them. In this
case, the rabbis forbade trading non-kosher food even if it will not bring one
to eat from it or be suspected of eating from it. The overwhelming majority of
halachic opinions however, do not support his view.

There is, however, a third approach which
several authorities follow.17 Although
generally we do not judge commandments which are Biblically mandated based on
their reasoning, this prohibition can be regarded as an exception. The law
against doing business with non-kosher merchandise is unique in the sense that
there are scenarios in which the prohibition is lifted. For example, when a Jew
just comes across the forbidden item—without actively seeking it—as mentioned
earlier. This exception is derived from the verse which states that non-kosher
items “shall be disgusting for you.” The extra wording of “for you” implies
that there are times when one may benefit from non-kosher animals, which the
rabbis understood to refer to cases when a Jew chances upon a non-kosher
animal.

The Torah appears to leave the application of
this law in the hands of the rabbis, who, these authorities claim, only applied
it in situations which may lead to a Jew consuming the non-kosher food.
According to this approach, even if we rule that the prohibition is Biblical,
it only applies when there is room for concern that the Jew will eat the
prohibited food.

The Chatam Sofer writes that since this issue
is unresolved, we rule stringently.18
He maintains that one may not trade non-kosher items even if there is no chance
he will eat them, and one may not work with non-kosher merchandise even if he
does not own it. This, however, is the most stringent view, and when judging
cases which are not clearly forbidden, many halachic authorities rely on the
more lenient approaches, as will be demonstrated below.

1. Owning a Non-Kosher
Establishment

Owning a non-kosher establishment clearly
contains both issues: doing business with non-kosher foods and the concern that
one may come to eat from them. Even if the owner does not physically involve
himself with the day-to-day operations, and the food is entirely cooked and
managed by employees, to the extent that there is absolutely no concern that he
may come to eat the non-kosher food, it is still not permitted.19

Since the majority of halachic authorities
maintain that the prohibition is Biblical,
and it is not clear if the Torah prohibition applies unilaterally or only
in cases where there is legitimate concern that the Jew may eat from it, we
judge the case to be a safek d’oraita
- a Biblically mandated law which is in doubt - which is always dealt with
stringently.

2. Waiting Tables for a
Non-Kosher Restaurant

Working as a waiter or chef for a non-kosher
establishment allows much more room for leniency, because the employee does not
own the merchandise or benefit from its sale. He or she is simply paid a fixed
salary.

There is also little concern that the waiter
would eat the food, explains Rabbi Moshe Feinstein, because that would constitute
stealing and likely cost him his job if caught (presumably this would not apply
in situations where it is acceptable for waiters to eat on the job).20

Moreover, a worker does not choose what type
of merchandise he or she is going to deal with; the owner decides. Sometimes he
may be instructed to work with forbidden items, but that is not definite. As
such, we can consider this case to be one in which the Jew chances upon the
forbidden items, which, as mentioned above, is permitted.21
For these reasons, combined with the fact that the prohibition may only be
rabbinic (which allows us to rule leniently in a case of doubt), many halachic
authorities allow one to work in a non-kosher restaurant.22

3. Sales Representative

A sales representative neither owns the
merchandise nor handles it. It is therefore entirely permissible to serve as a
broker or salesman for a non-kosher establishment.23

4. Owning Stock in Non-Kosher
Companies

Owning stocks in a public company clearly does
not contain either concern. The stock owner is not in the position to sample
non-kosher food, nor would people suspect him of eating it.

But since the prohibition may well be
Biblical, and we are unsure whether the Torah prohibition applies to all
situations or only when there is a chance one may eat the food, owning stocks
may still present a halachic issue. Indeed, Rabbi YitzchakYaakov Weiss
(“Minchat Yitzchak”) asserts that one may not own stocks in a non-kosher
company if it will allow him to have any sort of say in the management of the
company (for example, if he can attend shareholder meetings from time to time
and present an opinion).24 Rabbi Ovadia
Yosef takes a more lenient approach. He reasons that the cumulative doubts
surrounding this prohibition allow us to be lenient.25
The Mishneh Halachot follows the same line of reasoning as Rabbi Ovadia Yosef.26 He adds that
there is further room for leniency because even if the stockholder does have
voting rights within the company, if he suggests that the company no longer
sells non-kosher merchandise he will not be listened to. It emerges then that
the sale of non-kosher merchandise is being done against his will, which he is
not held accountable for, and is permitted to profit from.27
Thus one would be allowed to buy as many stocks as he likes as long as it will
not allow him to have a definite say in the running of the company.28

Since each case carries its own intricate details,
it is important to consult a knowledgeable rabbi before venturing into any
non-kosher food-related business.

In this article we will focus on the
prohibition against trading in non-kosher merchandise. There may be other
factors or prohibitions in play in any specific situation, so it’s important to
consult a halachic authority before entering into any sort of business.

We will primarily discuss the reasoning of
the Rashba, because his explanation applies regardless of whether the law is
considered Biblical or rabbinic, whereas the Shach’s reasoning assumes that the
prohibition is rabbinic.

Leviticus 11:28. In truth, these verses do
not refer to the animal’s kosher status, but to the ritual impurity they can
impart. For this reason, the Ra’avad and others are of the opinion that the
prohibition is only rabbinic, and the Talmud is merely finding an asmachta - a biblical source on which to
base their opinion. Rash Sirilio, however, amends the text to refer to other
verses which do discuss the prohibition against consuming these animals.
Indeed, the Babylonian Talmud (Pesachim 23a) and Torat Kohanim (Shemini,
Parshata 3:11) also quote these verses as the source of the prohibition.
According to Rash Sirilio’s text, the prohibition may be considered rabbinic.

Teshuvot Harashba 3:223. Many commentators
(See Peri Chadash Yoreh Deah 117:1; Ta”z 117:1 and others) quote
the Rashba’s opinion that the prohibition is Biblical. This can be traced to the words of the Rashba as
quoted by the Beit Yosef, which do seem to imply this. When one reads the words of the Rashba in their
entirety, however, it becomes apparent that he considers the prohibition rabbinic.
See Aruch Hashulchan Yoreh Deah 117 and Yabia Omer Vol. 8 Yoreh Deah 13.

He compares this to a case in which a partner
uses the company funds to trade non-kosher merchandise without the other
partner’s consent. The law in that case is that the other partner may benefit
from the profits of the deal even though it was forbidden, because it was done
against his will.(Shulchan Aruch Choshen Mishpat 176:12.)

What about a microbiologist working in a non-kosher food establishment as a quality assurance agent. I used to work in a smoked-meat packing plant and had to touch the meat in order to perform tests and ensure it was proper for consuming, from a bacteriological standpoint. I was always wearing a lab-coat and plastic gloves when handling the meat.
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